Constitution Check: Must Gay Marriage Be a Fundamental Right in Order to Exist?

A Washington Post reporter says a potential Supreme Court ruling on same-sex marriage as a fundamental right could help nullify rulings in more than 30 states. I'll explain why the issue isn't as simple as it seems.

The statement at issue:

President Obama opposed Proposition 8. But if the Supreme Court accepts the [Proposition 8] case, it could ask the administration for its view on whether marriage is a fundamental right that cannot be withheld from gay couples. Such a finding could sweep away state decisions on same-sex marriage, as well as the bans in 30 state constitutions.

Same-sex marriage could become a constitutional right, but it does not have to become a "fundamental right" in the sense that the Post's reporter uses the phrase, and the Proposition 8 case from California is not -- at this stage -- about a fundamental right. That case is on its way to the Supreme Court, but as a significantly narrower test case.

Proposition 8 is the 2008 voter-approved amendment to California's constitution that took away gay marriage after the state Supreme Court had established such a right under the state constitution. After that, two same-sex couples filed a federal court test case, and one of the aims of that case was to gain a broad right to marry under the federal Constitution. They got such a ruling in the summer of 2010 from a federal District Court judge, but not from the next-level court, the Ninth U.S. Circuit Court of Appeals.

As the Proposition 8 case moves closer to the Supreme Court, in an inevitable appeal, it is now focused on the idea that, once a state grants an equal right to marry, it cannot take it away only from gay couples, especially when it does so as an act of discrimination against them. No other state has done that, so the Proposition 8 case is now a California-only case. That is how it emerged in the Ninth Circuit Court decided, basing the finding of discrimination on a far narrower ground than a "fundamental right."

For a federal court to declare that a claimed constitutional right is "fundamental," it must find that such a right has deep roots in American culture, and a government (state or federal) has to have very strong reasons to take away such a right. If a right gains that status, it would, indeed, sweep all across the nation, nullifying every contrary law or court case.

But the test poses a high hurdle for anyone seeking to establish a new right, and it seems quite unlikely that a conservative-dominated Supreme Court would go that far in the context of same-sex marriage.

But the Court ruled in a 1996 Colorado case (Romer v. Evans) that a state cannot deny legal equality on the basis of sexual orientation, when it does so out of hostility to gays and lesbians. That ruling struck down a state constitutional amendment, using a very easy-to-meet constitutional standard.

The Ninth Circuit, in striking down Proposition 8 in February, was based largely on the Romer v. Evans precedent. The Circuit Court refused to answer a more basic question of whether gays have a constitutional right to marry, saying that it needed to go only so far as to say that a state may not constitutionally impose a marriage ban "that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the state and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class." It was the withdrawal of a right that counted the most.

If, as seems likely, that is the posture in which the Proposition 8 case reaches the Supreme Court, it would not involve any question of a "fundamental right" and thus the Court would not be likely to seek the views of the Obama administration on that specific issue.

The administration has not embraced the idea that gay marriage should be a fundamental right. It has said that discrimination against gays who want to marry should not be upheld in court unless it can meet a fairly stiff constitutional test (what lawyers call "heightened scrutiny"), and the administration on that basis alone is challenging the federal Defense of Marriage Act that limits married couples' federal benefits to opposite-sex couples.

When one or more of the current DOMA challenge cases go to the Court, those, too, might not involve the broader question of whether gay marriage should be treated as a fundamental right. It thus is quite premature to imply that the Supreme Court's first encounter with gay marriage will be on the issue of whether such marriages are to be elevated to that very special constitutional status.

Lyle Denniston is the National Constitution Center's Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court's work.